Raynor v. City of Wymore

• Decision Date: 21 May 1902
• Parties: RAYNOR v. CITY OF WYMORE.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 51

90 N.W. 759

RAYNOR

v.CITY OF WYMORE.

Supreme Court of Nebraska.

May 21, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Gage county; Stull, Judge.

“Not to be officially reported.”

Action by Melissa A. Raynor against the city of Wymore. Judgment for defendant, and plaintiff brings error. Reversed.Philip, Smith & Street, Saml. Rinaker, and R. S. Bibb, for plaintiff in error.

E. N. Kauffman, A. D. McCandless, and A. Hazlett, for defendant in error.

DAY, C.

Melissa A. Raynor brought this action in the district court of Gage county against the city of Wymore to recover damages alleged to have been sustained by her by reason of a fall occasioned by the defective condition of a sidewalk in said city. The trial resulted in a verdict and judgment in favor of the defendant, to revive which the plaintiff brings error to this court. The principal errors relied upon by the plaintiff for a reversal of the judgment relate to the giving of certain instructions to the jury. As we have reached the conclusion that the judgment should be reversed for reasons hereinafter stated, we deem it unnecessary to review the testimony, except in so far as it has a direct bearing on this instruction.

One of the errors complained of by the plaintiff relates to instruction No. 8, given at the request of the defendant, which is as follows: “The court instructs the jury that it is negligence for a person knowingly and unnecessarily to expose himself to danger, and if you believe from the evidence that the plaintiff before and at the time of the alleged injury knew of the defect in the sidewalk by reason of which she claims to have been injured, and that in going to and from her place of business plaintiff could have gone with equal convenience by some other sidewalk or sidewalks, if the same were in a safe condition, and thus have avoided the defect above mentioned, and failed to do so, then she was negligent, and if you so find then the plaintiff cannot recover.” This instruction is erroneous because it assumes as a matter of law that the defect in the sidewalk was of such a dangerous character that its use by the plaintiff was negligence, if she could have gone with safety and equal convenience to her place of destination by some other route. The record shows that the sidewalk in question was constructed of planks laid across wooden supports extending lengthwise of said sidewalk, to which supports the planks were fastened by nails; that the planks in several places had been permitted to become loosened, and at the point where the injury occurred one of them had become broken, and about one-half thereof entirely removed, thereby causing a hole in said sidewalk about nine inches wide, six inches deep, and extending about one-half of the width of the sidewalk. The plaintiff had been over the walk a great many times, and knew of its defective condition. It also appears that on the morning of the injury the sidewalk and the hole therein were covered by snow, so that a person walking thereon could not see the defect.

We do not think the mere using of the sidewalk in the condition and under the circumstances presented in this case would, as a matter of law, constitute negligence on the part of the plaintiff. Whether it was negligence for her to attempt to pass over the walk would depend upon whether she exercised ordinary care in selecting her route, and exercised ordinary care in using the sidewalk; that is, such care as an ordinarily prudent person would have exercised under similar circumstances. This is a question for the jury to determine from a consideration of all the facts and circumstances of the case.

This instruction is also erroneous because it is not responsive to the evidence. There is no testimony in the record that there was any other sidewalk or route which the plaintiff could have selected in going to and from her place of business. The...